Fair Housing Rights for People with Disabilities
Persons with Disabilities
A disability is defined in the Fair Housing Act as a physical or mental impairment that substantially limits one or more of a person’s “major life activities.” Major life activities can include caring for one’s self, walking, seeing, hearing, speaking, breathing, learning, and working. The definition of disability under the Fair Housing Act also includes people who have a history of an impairment and people who are perceived as having an impairment (even if they are not actually disabled).
Disabilities may include mental or emotional illness, difficulties associated with aging, HIV/ AIDS, and those recovering from alcoholism or drug addiction (individuals who are currently using illegal drugs are not protected).
Reasonable Accommodations & Modifications for People with Disabilities
A reasonable accommodation is a change in rules, policies, practices, or services that enables a person with a disability an equal opportunity to use and enjoy a dwelling. A person with a disability must notify the housing provider if they need a reasonable accommodation and the housing provider must grant the request if it is reasonable. There must be a connection between the disability and the need for the accommodation. Typically, accommodations will be a matter of negotiating what will serve both the housing provider and the disabled person best.
Examples of reasonable accommodations include:
- Assigning a person with a disability a reserved parking spot near their unit even though tenant parking is generally on a first come, first served basis
- Allowing a person with a disability to keep an assistance animal despite a “no pets” policy
- Allowing a disabled tenant who receives disability checks on the 5th of every month to pay rent after the 1st of the month without a late fee
A reasonable modification is a change in the physical structure of a dwelling that enables a person with a disability an equal opportunity to use and enjoy that dwelling. In many cases, individualized modifications to a dwelling enable a person with a disability to live in a space that they would otherwise be physically unable to live in. This includes the interior and exterior of a building or a unit, including public and common-use areas.
Examples of reasonable modifications include:
- Allowing a tenant who uses a wheelchair to install a ramp access to the entrance of the dwelling
- Allowing a tenant to install grab bars in the bathroom
- Allowing a tenant to install visual or tactile alert devices
Normally the expense of reasonable modifications is the responsibility of the tenant unless the housing is federally subsidized (such as a Public Housing Authority). Federally funded housing projects may be required to pay for reasonable modifications requested by a disabled tenant.
Private housing providers can require that the tenant use a certified contractor to do the work and can require that the tenant restore the dwelling to its original condition upon moving out of the unit if the modification will interfere with the next tenant’s use and enjoyment of the premises. For example, if a tenant has a ramp to the laundry room built in a multi-unit apartment complex, the ramp does not need to be removed because it is located in a common use area and may be beneficial to future tenants. However, if cabinets in a tenant’s kitchen are moved lower to provide more mobility to a wheelchair user, the cabinets may have to be returned to their original height.
If restorations to the dwelling will be necessary when a tenant moves out, a housing provider may request payment by the tenant into an interest-bearing escrow account. Such payments may be made over a reasonable period and the amount must be reasonable and cannot exceed the cost of the restorations. The interest from the account accrues to the benefit of the tenant. If you do need to make extensive modifications to a rental unit, consider negotiating a longer lease with the landlord.
When must a housing provider grant a reasonable accommodation or modification request?
A housing provider must grant a request for a reasonable accommodation or reasonable modification if:
- the person making the request fits the definition of a person with a disability,
- the person needs what they are requesting because of their disability, and
- the request is “reasonable”.
A housing provider may not stall or delay in responding to a request for reasonable accommodation or reasonable modification.
What is Reasonable?
A request for an accommodation or modification is considered reasonable if that request:
- Does not cause an undue financial and administrative burden to the housing provider
- Does not cause a basic change in the nature of the housing program available
- Will not cause harm or damage to others
- Is technologically possible
Example 1: It would be unreasonable for a person with a disability to ask that their landlord assist them with their meals, unless the housing provider was already in the business of providing meal support (such as in an assisted living facility).
Example 2: If a person becomes disabled and can no longer access their 3rd floor apartment in a non-elevator building, it would be unreasonable (and probably architecturally impossible) to request the landlord allow the tenant to build an elevator. A more reasonable request would be to request a transfer to a first floor apartment. If that is not possible, the tenant could negotiate with the landlord for an early release from the lease.
If the accommodation or modification proposed by a tenant is unreasonable, the housing provider must engage in an interactive dialogue to determine if there is another solution that will meet the tenant’s needs.
Tips for Writing Reasonable Accommodation or Modification Request Letters
It is the responsibility of the tenant (or a representative of the tenant) to request an accommodation or modification. A landlord cannot be expected to predict or anticipate an individual’s needs. Although not required by the Fair Housing Act, it is recommended that requests for reasonable accommodations or modifications be made in writing for proper documentation and include proof that the tenant has a covered disability and the need for an accommodation or modification.
Your letter should:
- State where you live and who is responsible for the building.
- Indicate that you qualify as a person with a disability as defined by the Fair Housing Act. It is not necessary to reveal the nature or severity of your disability.
- Describe the policy, rule, or architectural barrier that is problematic to you.
- Describe how this policy or barrier interferes with your needs, rights, or enjoyment of your housing.
- In clear and concise language, describe the accommodation you are seeking for the policy, rule, or barrier.
- Cite the applicable law that protects your rights.
- For accommodations use: Fair Housing Act Amendments Sec. 804 (42 U.S.C. 3604)(f)(3)(B)
- For modifications use: Fair Housing Act Amendments, Sec. 804 (42 U.S.C. 3604)(f)(3)(A)
- Ask for a written response within a certain amount of time.
- Sign and date the request. Remember to keep a copy of your request for your files.
Verifying Disability & Need
When can a Housing Provider Ask for Verification of a Disability and Need for a Reasonable Accommodation or Modification?
If the disability is obvious and need for the reasonable accommodation or modification is also obvious, the housing provider cannot ask for additional documentation (for example, a person with a visual impairment who uses a guide dog).
If the disability is obvious, but the need for the reasonable accommodation or modification is not clear, the housing provider is only allowed to request information to evaluate the disability related need (for example, a person with a visual impairment who has an emotional support cat).
If both the disability and the need are not clear, the housing provider may request documentation that a tenant has a disability and has a disability related need for the reasonable accommodation or modification (for example, a person with a mental health diagnosis or post-traumatic stress disorder who has an emotional support animal).
A housing provider may not ask:
- The nature or severity of a disability
- Questions that would require you to waive your rights to confidentiality regarding your medical condition or history
- To see your medical records
Assistance animals for people with disabilities are not pets. Assistance animals are animals that work, provide assistance, or perform tasks for the benefit of a person with a disability—including providing support for mental or emotional disabilities. Emotional support animals alleviate one of more identified symptoms or effects of a person’s disability.
Can a landlord evict you for an emotional support animal (ESA)?
A housing provider may not deny occupancy or evict a person with a disability because they require an assistance animal.
Under the Fair Housing Act an assistance animal is not required to have formal training or certification, and a housing provider is not allowed to require proof that the animal has been certified, trained, or licensed as a service animal. Policies limiting the size, weight, or type of pets allowed do not apply to assistance animals. Pet fees and/ or pet security deposits must be waived for assistance animals.
Accessibility & New Construction
Under the Fair Housing Act, single story units in new multifamily housing built for first occupancy after March 13, 1991 must be accessible if the buildings contain four or more units and if the units are either located on the first floor or are served by an elevator. To comply with the accessibility requirements of the Fair Housing Act, the housing must include the following features:
- An accessible building entrance on an accessible route
- Accessible public and common-use areas
- Doors that allow passage by a person in a wheelchair
- Accessible route into and through the dwelling unit
- Light switches, electrical outlets, thermostats and other environmental controls in accessible locations
- Reinforcements in bathroom walls for later installation of grab bars
- Kitchens and bathrooms that allow a wheelchair user to maneuver about the space